WILL Press Release | WILL to DPI: Proposed ESSA Rules Violate State Law
Puts State Superintendent Evers on Notice
April 20, 2018 – Milwaukee, WI – WILL Attorneys CJ Szafir and Libby Sobic submitted testimony to the Department of Public Instruction (DPI) that their proposed regulations violate state law – the rulemaking process in chapter 227 – and could be subject to a legal challenge.
DPI recently issued two scope statements, 033-18 and 040-18, relating to accountability for K-12 schools that would create education policy in accordance with DPI’s state plan to comply with the federal law, the Every Student Succeeds Act (ESSA). But state law requires agencies to have the explicit statutory authority to promulgate rules. DPI does not have that authority and fails to comply with state law.
In a meager attempt to cite to legal authority, DPI argues that they can make state education policy because state law gives them the power to accept federal funds. It’s a bizarre justification; the ability to accept money is not the same as the ability to make policy upon receiving that money. And the Tenth Amendment precludes the federal government from mandating the promulgation of rules to state agencies.
In addition, DPI misuses the emergency rule process in an attempt to circumvent the administrative rule-making process. They claim that they have to use the emergency rule process – expedited rule-making – because the rules need to be in place as soon as possible. But the law does not give DPI the ability to do an emergency rule because of “timeliness.” Moreover, even if it did, WILL and Wisconsin Manufactures and Commerce (WMC) raised the issue of the need to start rulemaking back in February 2017.
The Department’s failure to cease work and failure to comply with the rule-making process in Chapter 227 will result in any rules promulgated under these scope statements being invalid.
The full testimony can be found here.